Torah in the Mouth.pdf

Torah in the Mouth, Writing and Oral Tradition in Palestinian Judaism, 200 BCE - 400 CE
Jaffee, Martin S., Samuel and Althea Stroum Professor of Jewish Studies, University of Washington
Print publication date: 2001, Published to Oxford Scholarship Online: November 2003
Print ISBN-13: 978-0-19-514067-5, doi:10.1093/0195140672.001.0001
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Clearly, the High Court is represented as a mixture of a legislative and judicial body, capable of applying received halakhah even as it may
pass it into legislation. But what is the nature of this halakhah? It is remarkably consonant with the picture we have described above on
the basis of the Mishnah.
First, as in M. Ohalot 16:1, it is an orally transmitted datum of tradition, about which one has either “heard” or not (2). Second, as in M.
Eduyyot 1:5–6, it may be a rational decision subject to argument and the consent of the majority (3). Finally (3), as in M. Parah 7:6 and M.
Sanhedrin 11:6, it is represented here in reference not to civil or criminal law, but as a ritual matter: in this case a question of whether an
unspecified person or object has been polluted by a source of uncleanness which would impose the need for a ritual of purification. The
image of Sages deliberating about the “pure and the polluted” is something of a trope which sums up the Sages' acts of deliberation. It
should not be pressed too hard in order to exclude matters of criminal or civil law from the purview of halakhic tradition. The choice of this
particular trope, however, is instructive. For even where we find an explicit attempt to place the halakhic process in the context of
legislative and judicial institutions—the court system—the subject matter of that process is not imagined as a question of, say, guilt or
innocence, financial liability or freedom from liability; rather, at issue is a fine point of cultic procedure.
Thus the most explicit linkage of halakhah with Israelite institutions of social regulation reveals both that halakhah may include laws within
its overall structure but that its structure is not defined per se as law. Even where halakhah may become “law,” it is also, and perhaps
primarily, “tradition” of a unique kind. It is tradition received and self-consciously created within the circles of the Sages, whether that
circle is the relatively informal companionship of masters and disciples or the highest legislative and judicial institutions of the Land of
Israel. What is primary in the creation of halakhah is the act or orally transmitted opinion of the Sage; the social or institutional setting of
that act or utterance is immaterial for evaluating its authority as a customary norm. With this last observation in mind, we are prepared to
ask the next logical question: precisely how does the early rabbinic literature imagine the role of its Sages in the production of oral-literary
tradition and its application? 52
The Sage as a Halakhic Source
This question brings us into confrontation, first of all, with the figure of Moses himself, the archetypal legislator. The Mishnah transmits a
story about a day when deliberations
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Temple Mount and one on the Rampart.
2. If one party [to a dispute] required a [ruling of] halakhah, 49 he would go to the court of his town. . . . If they had heard [a tradition on the
question], they would tell them. If not he and the senior member among them would come to the court on the Temple Mount. If they
had heard, they would tell them. If not,
both parties would come to the court on the Rampart. If they had heard, they would tell them. If not, both parties would come to the
court in the Chamber of Hewn Stone. . . .
3. The halakhah 50 was asked. If they had heard, they would tell them. But if not, they would call a vote. If those who declared for
uncleanness were in the majority, they declared for uncleanness; if those who declared for cleanness were in the majority, they
declared for cleanness.
4. From there would halakhah go forth and become publicized in Israel.
5. Upon the proliferation of disciples of Shammai and Hillel who had not attended [their Masters] as fully as necessary, disputes
increased in Israel, and two Torahs emerged. 51
in the House of Study yielded a decision, unwarranted by scriptural law, to impose tithing obligations upon produce grown by Jews in the
Transjordanian territories of Ammon and Moab. Rabbi Eliezer b. Hyrcanus, an important figure in the early Yavnean period, is reported to
have greeted the ruling with the following remark (M. Yadayim 4:3):
“The mystery of the Lord is with those who fear Him, and His covenant shall inform them” (Ps.25:14)! Go and tell the Sages: Do
not mistrust your decision! For I have received a tradition [qbl] from Rabban Yohanan b. Zakkai, who heard it [šm‘] from his
Master, who heard it from his Master ultimately as a halakhah of Moses from Sinai that Ammon and Moab separate the Poor
Tithe in the Sabbatical Year! 53
The extension of scriptural tithing law promulgated by the contemporary community of Sages here finds its authority in the fact that it
restores a halakhic institution of Moses, the first convener of an Israelite court, 54 and conforms to a continuous tradition passed down
from the Prophet to Eliezer's own teacher, Rabban Yohanan b. Zakkai.
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